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Religious Freedom Reimagined?

Every year the Anti-Defamation League (ADL) holds a panel discussion on the just-concluded term of the U.S. Supreme Court. Broadcast live from the National Constitution Center, this year’s panel — consisting of legal experts Dean Erwin Chemerinsky, Frederick Lawrence and Dahlia Lithwick — reviewed the 2016-17 term, which ended in June. They covered topics ranging from free speech and transgender rights to an analysis of the court’s newest member, Justice Gorsuch. They also discussed an issue of particular interest to the Jewish community: the separation of church and state, raised by a Supreme Court case with potentially far-reaching implications.

Decided on the last day of the court’s term, that case, Trinity Lutheran Church of Columbia, Inc. v. Comer, revolved around a church’s efforts to seek state funding for a playground improvement from the Missouri Department of Natural Resources. The department awards grants to a number of nonprofit organizations that use recycled tires to create soft playground surfaces. When the church applied for one of these grants for its preschool and daycare center, its request was denied by the state on the grounds of the Blaine Amendment. The Blaine Amendment is a provision of the Missouri Constitution that forbids the use of state money to aid any religious institution or practice. Many states admitted to the Union in the 19th century included such amendments in their constitutions.

Trinity Lutheran Church responded by suing the Missouri Department of Natural Resources. The lower courts sided with the state, but the Supreme Court ruled in favor of the church, in a decision with a multiplicity of separate opinions: three concurring and one dissenting. Although the Trinity Lutheran case started as a frontal assault on Missouri’s Blaine Amendment, it just may turn out to be a key case on the separation of church and state under the First Amendment of the U.S. Constitution.

The Supreme Court concluded that denying the playground grant simply because Trinity Lutheran was a church is discriminatory and violates the right to religious freedom.

Superficially, this decision parallels free speech cases ruling against “viewpoint discrimination” in state actions. For example, Pennsylvania’s corporation bureau refused to process an application to form a corporation named “I Choose Hell” on the grounds that it was blasphemous. Pointing out that “I Choose Heaven” would presumably have been approved, the federal court ruled against the state’s refusal to process “I Choose Hell.”

But the First Amendment provision against a government establishment of religion explicitly discriminates against religion, forthrightly and intentionally. As Justice Sotomayor points out in her dissent in Trinity Lutheran, the court’s ruling in this case is directly opposite of the original intent of the founding fathers and of the fairly consistent rulings of the courts since then. In an article in The Philadelphia Inquirer, Duquesne University law school professor Bruce Ledewitz describes the case as putting originalism — the effort to interpret the Constitution to carry out the framers’ intent — in “the historical ash heap.”

Trinity Lutheran is significant in another way: the decision forces a state to spend its funds on a religious school. States have adopted laws extending state aid non-denominationally, thus including religious schools. When such laws have been challenged, the courts have devised tests to determine what limited aid is not considered an “establishment of religion,” and hence, is legal. The issue in these situations has always been whether a particular state program providing aid to a religious school is constitutional. In contrast, the Trinity Lutheran decision requires an unwilling state to spend public money on a religious school.

Chief Justice Roberts, writing the majority opinion in Trinity Lutheran, sought to defuse any suggestion that the case is a major change in the principle of church-state separation, noting in a footnote that this is only a playground case. But as ADL panelist Lawrence pointed out, this case crosses a serious historic line.

Justice Gorsuch, joined by Justice Thomas, wrote an opinion concurring in the result but taking the case far beyond the playground by stating, “And the general principles here do not permit discrimination against religious exercise — whether on the playground or anywhere else.” The court’s newest justice took this case as an opportunity to issue a strong message about the meaning of church-state separation.

Thirty states have Blaine Amendments or similar language in their state constitutions excluding religious institutions from receiving public money for religious education or practice. If the Gorsuch view is adopted, that this is a discrimination against religion, under most if not all circumstances, state programs that are available only to non-sectarian institutions would violate the First Amendment. States including Pennsylvania face a problem, but for the moment, can only wait and see where Trinity Lutheran takes us.

Meanwhile, religious institutions of all kinds are going to look for new ways to secure public money. Within the Jewish community, there will be proponents of the Trinity Lutheran ruling, who believe that the case opens up the state purse to Jewish organizations. Supporters will argue that the concept of viewpoint discrimination will protect us — synagogues and Jewish institutions will share the same benefits as Christian institutions. This position assumes that our small minority can hold its own in tapping public funds, or resisting the insinuation of religious influence in the use of government powers.

If Trinity Lutheran launches an armada of suits by religious interests trying to tap into public funds, the Jewish community must have a clear position on where it stands as to what is proper and improper in the use of government money and power in dealing with religious institutions. The Jewish community has historically lined up in favor of the strict separation of church and state — and for good reason. A substantial segment of the American public sees the United States as a Christian nation. The Establishment Clause and provisions such as the Blaine Amendment protect us and other religious minorities from the unlimited use of public funds or governmental influence to advance a single view of the Almighty. Our best interest is to read the Trinity Lutheran case narrowly, consistent with the footnote in Justice Roberts’ opinion that this is only a playground case, and not a total rewrite of separation of church and state.

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About Ken Myers

Ken is a lawyer (B.S. from Massachusetts Institute of Technology, J.D. from Harvard Law School), who practiced in environmental, municipal and utility regulatory law. He was listed for environmental practice in Naifeh & Smith, Best Lawyers in America. But for over twenty years he has participated in pro bono work on First Amendment and church-state problems.

Ken served as President of the Pennsylvania Region of American Jewish Congress, and as a member of the famed national Commission on Law and Social Action of AJCongress. He also served on its national Governing Board.

Locally Ken served on the Jewish Community Relations Council. He was a member for five years of the Board of Trustees of Albert Einstein Healthcare System, and for two years on the Board of Belmont Behavioral Health Hospital. At Congregation Adath Jeshurun in Elkins Park Ken served on the Board of Directors and has chaired its Social Action Committee. He was a founder and officer of JSPAN, the Jewish Social Policy Action Network.

Ken is chair of Common Cause of Pennsylvania, known as "the people's lobby."